Printed Image of York, Inc. v. Mifflin Press, Ltd.

J-A31034-15
2016 Pa. Super. 18
THE PRINTED IMAGE OF YORK, INC., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MIFFLIN PRESS, LTD., D/B/A THE
PRINTED IMAGE OF YORK, LLC, PAMELA
A. KERR AND JOHN CONWAY,
Appellees No. 693 MDA 2015
Appeal from the Judgment Entered March 24, 2015
in the Court of Common Pleas of York County
Civil Division at No.: 2010-SU-2355-01
BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED JANUARY 29, 2016
Appellant, The Printed Image of York, Inc., appeals from the trial
court’s order entering judgment in favor of Appellees, Mifflin Press, Ltd.,
d/b/a The Printed Image of York, LLC, Pamela A. Kerr, and John Conway, in
accordance with its entry of a nonsuit in favor of Appellees in this breach of
contract case. We affirm.
We take the relevant facts and procedural history from the trial court’s
May 29, 2015 opinion and our independent review of the record. On May
10, 2010, Appellant filed a complaint against Appellees, alleging breach of
the parties’ July 25, 2006 contract, pursuant to which Appellant sold Mifflin
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A31034-15
Press Ltd. a printing business known as “The Printed Image of York.” 1
Pursuant to the contract, Appellees made an initial payment of $1,500.00 at
closing. Appellees were also required to make payments referred to as
“commission” payments over a three-year period, consisting of a certain
percentage of monthly gross sales, if the sales were generated from
Appellant’s existing customer base.2 If a customer overlapped between the
parties, Appellees would pay a commission only if the sale pertained to
existing work that Appellant had already performed for that customer.
At the September 2014 jury trial, John Conway testified that Appellees
made four commission payments to Appellant, in the amounts of $356.71,
$776.18, $510.03, and $1,033.55, with the last payment made in January
2007. (See N.T. Trial, 9/11/14, at 130, 132-34).3 Appellant deemed the
documentation Appellees provided during discovery regarding commission
payments unusable to calculate damages because it was heavily redacted.4
____________________________________________
1
Appellees John Conway and Pamela A. Kerr own Mifflin Press Ltd. Richard
Prosser owns Appellant, The Printed Image of York, Inc.
2
Specifically, a 10% rate was to be paid for the first twelve-month period,
and then decrease to 7.5% and 5%, respectively, for each twelve-month
period thereafter. (See Plaintiff’s Exhibit 1, Agreement of Sale, 7/25/06, at
unnumbered page 1 ¶ 2).
3
Richard Prosser testified that Appellees made only two commission
payments. (See N.T. Trial, 9/11/14, at 177-79).
4
This revenue sales report was admitted into evidence as Plaintiff’s Exhibit
4. (See N.T. Trial, 9/11/14, at 114, 148, 227). The cover letter states that
customer names that are not relevant had been redacted. (See Plaintiff’s
(Footnote Continued Next Page)
-2-
J-A31034-15
Mr. Prosser prepared calculations based on Appellant’s own sales in the
three-year period preceding execution of the contract, which had steadily
declined. Mr. Prosser calculated commissions based on all sales during that
time-period, and he provided no testimony regarding how to determine
which customers overlapped with Appellees’ customers. At the close of
Appellant’s case, Appellees moved for a nonsuit based on their belief that
Appellant failed to prove damages.
On September 15, 2014, the court entered an order granting a nonsuit
in favor of all Appellees and stated its finding that Appellant failed to
establish a right to relief based on the lack of evidence of specific damages.
(See Order, 9/15/14, at 1-2). On September 22, 2014, Appellant filed a
timely motion for post-trial relief in accordance with Pennsylvania Rule of
Civil Procedure 227.1(c)(1), requesting removal of the nonsuit. The court
ordered submission of briefs, and the parties filed briefs in March of 2015,
following transcription of the trial record. On March 24, 2015, the court
issued its order entering judgment in favor of Appellees in accordance with
its previous order granting the nonsuit. (See Order, 3/24/15). The court
also stated that it no longer had jurisdiction in this matter because it failed
to rule upon Appellant’s motion for post-trial relief within 120 days. (See
_______________________
(Footnote Continued)
Exhibit 4, 6/20/11, at unnumbered page 1). Although Appellant considered
the document unreliable due to the redactions, it did not seek an un-
redacted copy prior to trial. (See N.T. Trial, 9/11/14, at 159-63, 167-68,
187-88, 204).
-3-
J-A31034-15
id.); see also Pa.R.C.P. 227.4(1)(b).5 On April 20, 2015, Appellant filed a
timely notice of appeal.6
____________________________________________
5
Rule 227.4 provides in pertinent part:
[T]he prothonotary shall, upon praecipe of a party:
(1) enter judgment upon a nonsuit by the court . . . if
* * *
(b) one or more timely post-trial motions are filed and the court
does not enter an order disposing of all motions within one
hundred twenty days after the filing of the first motion. A
judgment entered pursuant to this subparagraph shall be final as
to all parties and all issues and shall not be subject to
reconsideration[.]
Pa.R.C.P. 227.4(1)(b).
Thus, Rule 227.4 authorizes the prothonotary, upon praecipe of a
party, to enter judgment upon a nonsuit by the court where the court fails
to dispose of post-trial motions within 120 days, and provides that such
judgment is final. See id. However, in the instant case, no party filed a
praecipe for judgment on the nonsuit; therefore, the court was not deprived
of jurisdiction to rule on the post-trial motion. See id., explanatory
comment—1995 (stating that filing of praecipe for judgment is optional, that
parties may await decision of trial court, and that “[t]he rule does not
provide an automatic limit upon the time in which the court may make its
ruling [but rather] provide[s] a time standard by which the parties and the
court may proceed.”).
6
Appellees claim that this appeal is untimely because Appellant filed its
notice of appeal more than thirty days after the court issued its order
entering the nonsuit. (See Appellees’ Brief, at 3-6). However, “[u]nder our
Appellate Rules, an appeal in a civil case in which post-trial motions are filed
lies from the entry of judgment.” Billig v. Skvarla, 853 A.2d 1042, 1048
(Pa. Super. 2004) (citations omitted). Because Appellant filed its notice of
appeal within thirty days of entry of judgment, this appeal is timely. See
id.; see also Pa.R.A.P. 903(a).
-4-
J-A31034-15
Appellant filed a timely concise statement of errors complained of on
appeal on May 15, 2015, pursuant to the trial court’s order. See Pa.R.A.P.
1925(b). The trial court filed an opinion on May 29, 2015, in which it
discussed the merits of Appellant’s post-trial motion. See Pa.R.A.P.
1925(a).
Appellant raises two issues for our review:
I. Did the trial court err in its March 24, 2015 order finding it
lacked jurisdiction to rule upon [Appellant’s] motion for post-trial
relief and directing judgment in favor of [Appellees]?
II. Did the trial court err in its September 15, 2014 order
entering compulsory non-suit as to all [Appellees] and its
subsequent denial of [Appellant’s] post-trial motion to remove
the non-suit?
(Appellant’s Brief, at 5) (unnecessary capitalization omitted).
Appellant first argues that the trial court erred in finding that it no
longer had jurisdiction to rule upon Appellant’s motion for post-trial relief
because it did not dispose of the motion within 120 days. (See Appellant’s
Brief, at 13-15). Appellant further asserts that the trial court was required
to file an opinion addressing the merits of the post-trial motion, and to
“suggest what relief it would have granted” if it had ruled on the motion on
the merits. (Id. at 16). Appellant posits that this Court should remand this
case to the trial court for disposition of the post-trial motion and preparation
of an opinion on the merits. (See id.). This issue is moot.
An issue before a court is moot “when a determination is sought on a
matter which, when rendered, cannot have any practical effect on the
-5-
J-A31034-15
existing controversy.” Commonwealth v. Nava, 966 A.2d 630, 633 (Pa.
Super. 2009) (citation omitted).
Here, the record reflects that the trial court granted Appellees’ motion
for a nonsuit based on its determination that Appellant failed to establish a
right to relief because it failed to present evidence of specific damages.
(See Order, 9/15/14, at 1-2). After Appellant filed its post-trial motion
seeking removal of the nonsuit and the parties submitted briefs addressing
the issue, the court entered judgment in favor of Appellees in accordance
with its previous order granting the nonsuit. Although the court mistakenly
stated that it lacked jurisdiction to rule on the post-trial motion because it
failed to dispose of it within 120 days, the court’s Rule 1925(a) opinion
makes clear that it: reviewed the briefs filed by the parties on the post-trial
motion; and would have denied the motion on the merits because
“[Appellant] did not produce sufficient evidence for a jury to base a damages
award” and consequently, “a jury could only speculate on what damages
should be awarded.” (Trial Court Opinion, 5/29/15, at unnumbered pages 3,
5; see id. at unnumbered page 2). Thus, remand to the trial court for
disposition of Appellant’s post-trial motion and preparation of an opinion on
the merits would be cumulative and serve no practical purpose. Accordingly,
Appellant’s first issue is moot.
In Appellant’s second issue, it argues that the trial court erred in
entering the nonsuit because, contrary to the court’s finding, it did present
sufficient evidence of damages. (See Appellant’s Brief, at 16-23). In
-6-
J-A31034-15
support, Appellant points to: Plaintiff’s Exhibit 4, the redacted sales report
provided by Appellees; and to the documentation prepared by Mr. Prosser
showing Appellant’s history of sales in the three fiscal years preceding the
parties’ July 2006 agreement. (See id. at 19-23). This issue does not merit
relief.
Our standard of review is well-established: A nonsuit is proper
only if the jury, viewing the evidence and all reasonable
inferences arising from it in the light most favorable to the
plaintiff, could not reasonably conclude that the elements of the
cause of action had been established. Furthermore, all conflicts
in the evidence must be resolved in the plaintiff’s favor. In
reviewing the evidence presented we must keep in mind that a
jury may not be permitted to reach a verdict based on mere
conjecture or speculation. We will reverse only if the trial court
abused its discretion or made an error of law.
Gillard v. Martin, 13 A.3d 482, 486-87 (Pa. Super. 2010) (citations and
quotation marks omitted).
“[A] party seeking damages for breach of contract must be able to
prove such damages with reasonable certainty.” Logan v. Mirror Printing
Co. of Altoona, 600 A.2d 225, 227 (Pa. Super. 1991) (citations and internal
quotation marks omitted).
[D]amages in a breach of contract action must be proved with
reasonable certainty. Otherwise, they are generally not
recoverable. Spang & Co. v. U.S. Steel Corp., . . . 545 A.2d
861, 866 ([Pa.] 1988) (“As a general rule, damages are not
recoverable if they are too speculative, vague or contingent and
are not recoverable for loss beyond an amount that the evidence
permits to be established with reasonable certainty.”). The
question of whether damages are speculative has nothing to do
with the difficulty in calculating the amount, but deals with the
more basic question of whether there are identifiable damages.
-7-
J-A31034-15
Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc.,
98 A.3d 645, 661 (Pa. Super. 2014), appeal denied, 117 A.3d 1281 (Pa.
2015) (some quotation marks and most citations omitted).
Here, the trial court determined that, based on the evidence presented
at trial, the jury could only speculate as to what damages, if any, should be
awarded. (See Trial Ct. Op., at unnumbered page 5). After review of the
record, we agree.
Specifically, Mr. Prosser testified as follows regarding Plaintiff’s Exhibit
4:
Q. Do you find this document generally reliable?
A. No.
Q. Can you determine what your damages are from that
document?
A. No.
* * *
Q. How many times did you tell Mr. Conway that that document
was unreliable?
A. Zero.
Q. In fact, the first time Mr. Conway learned that you believe it
was unreliable was when you’re sitting here testifying; correct?
A. Correct. . . .
(N.T. Trial, 9/11/14, at 188, 204).
Mr. Prosser explained that “[b]ecause the information supplied was
deemed unreliable to me, [] I took the history of my sales for the previous
-8-
J-A31034-15
three years to the sale [to Appellees] and printed it out by year to come up
with some kind of idea of the amount of business or damages that should be
involved in this.” (Id. at 190). He also acknowledged that, during these
three years, his sales steadily declined, and that if Appellees had not
purchased the business, he would have closed it in July of 2006. (See id. at
210, 215).
With respect to identifying the parties’ overlapping customers, Mr.
Prosser testified:
Q. Was there ever a time when you and Mr. Conway sat down
and figured out what kind of duplicate customers you might have
had?
A. No.
Q. Did you hear the testimony earlier this afternoon where [Mr.
Conway] indicated [fifty] percent of the customers that you had
turned over were also his?
A. Yes.
Q. But you’re saying you and he never had that discussion?
A. No.
* * *
Q. . . . And sitting here today, you don’t know how many
customers overlap, do you?
A. Correct.
* * *
Q. And you have no way of knowing what customers of Mifflin
Press overlap with Printed Image of York, do you?
-9-
J-A31034-15
A. No.
(Id. at 189-90, 206, 208).
After hearing the testimony on damages, the court entered the nonsuit
based on its assessment that:
[Appellant’s] calculation based on all sales for the three years
before the contract would not assist the jury in determining the
damages issue. There was no way of knowing which were
[Appellant’s] pre-existing customers, or if there were
overlapping customers, which sales were nevertheless
attributable to [Appellant]. Therefore, the jury could not
determine what, if any, commissions were still due. The
testimony did not establish a measure of damages with sufficient
certainty and provide the jury a framework to decide the issue.
(Trial Ct. Op., at unnumbered page 5).
Upon review, we agree with the trial court, and conclude that it did not
err or abuse its discretion in entering the nonsuit where Appellant failed to
meet its burden of presenting evidence of non-speculative, identifiable
damages. See Gillard, supra at 487; Newman Dev. Grp. of Pottstown,
LLC, supra at 661; Logan, supra at 227. Accordingly, Appellant’s second
issue does not merit relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/2016
- 10 -